2006 Code of Virginia § 63.2-1523 - Use of videotaped statements of complaining witnesses as evidence

63.2-1523. Use of videotaped statements of complaining witnesses asevidence.

A. In any civil proceeding involving alleged abuse or neglect of a childpursuant to this chapter or pursuant to 16.1-241, 16.1-251, 16.1-252,16.1-253, 16.1-283 or 20-107.2, a recording of a statement of the allegedvictim of the offense, made prior to the proceeding, may be admissible asevidence if the requirements of subsection B are met and the court determinesthat:

1. The alleged victim is the age of twelve or under at the time the statementis offered into evidence;

2. The recording is both visual and oral, and every person appearing in, andevery voice recorded on, the tape is identified;

3. The recording is on videotape or was recorded by other electronic meanscapable of making an accurate recording;

4. The recording has not been altered;

5. No attorney for any party to the proceeding was present when the statementwas made;

6. The person conducting the interview of the alleged victim was authorizedto do so by the child-protective services coordinator of the local department;

7. All persons present at the time the statement was taken, including thealleged victim, are present and available to testify or be cross examined atthe proceeding when the recording is offered; and

8. The parties or their attorneys were provided with a list of all personspresent at the recording and were afforded an opportunity to view therecording at least ten days prior to the scheduled proceedings.

B. A recorded statement may be admitted into evidence as provided insubsection A if:

1. The child testifies at the proceeding, or testifies by means ofclosed-circuit television, and at the time of such testimony is subject tocross examination concerning the recorded statement or the child is found bythe court to be unavailable to testify on any of these grounds:

a. The child's death;

b. The child's absence from the jurisdiction, provided such absence is notfor the purpose of preventing the availability of the child to testify;

c. The child's total failure of memory;

d. The child's physical or mental disability;

e. The existence of a privilege involving the child;

f. The child's incompetency, including the child's inability to communicateabout the offense because of fear or a similar reason;

g. The substantial likelihood, based upon expert opinion testimony, that thechild would suffer severe emotional trauma from testifying at the proceedingor by means of closed-circuit television; and

2. The child's recorded statement is shown to possess particularizedguarantees of trustworthiness and reliability.

C. A recorded statement may not be admitted under this section unless theproponent of the statement notifies the adverse party of his intention tooffer the statement and the substance of the statement sufficiently inadvance of the proceedings to provide the adverse party with a reasonableopportunity to prepare to meet the statement, including the opportunity tosubpoena witnesses.

D. In determining whether a recorded statement possesses particularizedguarantees of trustworthiness and reliability under subdivision B 2, thecourt shall consider, but is not limited to, the following factors:

1. The child's personal knowledge of the event;

2. The age and maturity of the child;

3. Any apparent motive the child may have to falsify or distort the event,including bias, corruption, or coercion;

4. The timing of the child's statement;

5. Whether the child was suffering pain or distress when making the statement;

6. Whether the child's age makes it unlikely that the child fabricated astatement that represents a graphic, detailed account beyond the child'sknowledge and experience;

7. Whether the statement has a "ring of verity," has internal consistencyor coherence, and uses terminology appropriate to the child's age;

8. Whether the statement is spontaneous or directly responsive to questions;

9. Whether the statement is responsive to suggestive or leading questions; and

10. Whether extrinsic evidence exists to show the defendant's opportunity tocommit the act complained of in the child's statement.

E. The court shall support with findings on the record, or with writtenfindings in a court not of record, any rulings pertaining to the child'sunavailability and the trustworthiness and reliability of the recordedstatement.

(1988, c. 900, 63.1-248.13:3; 2002, c. 747.)